Illness and injury need scrutiny
If employees misbehave, they should be disciplined
The all too common belief that an ill employee is untouchable recently was shattered by the British Columbia Human Rights Tribunal, when journeyman scaffolder Wan Ji Li balked at the accommodation work Vancouver-based Aluma Systems provided him.
Li’s job was physically demanding work. One day, while assigned to a movie set, building scaffolding for a helicopter pad, his hands began swelling. He soldiered on, but within days had developed pain in his right palm. Li saw a doctor, who figured he had “popped a vein.” The physician prescribed muscle relaxants and anti-inflammatory pills, and issued a note stating: “Can do modified duties if available tomorrow. Cannot use hand next one to two weeks.”
Aluma accommodated him by assigning light duties in its yard. Li chafed under this temporary work, which he felt was beneath his skill level. He asked to be restored to his original duties. Management refused the request until he received medical clearance.
Li, however, persisted, informing Scott Baird, the general manager, that he got hurt because of the poor quality of labour Baird had assigned to the site. He told Baird he should recruit staff who actually wanted to work. Angered by these accusations, Baird fired Li.
Li filed a complaint of discrimination on the grounds of disability with the British Columbia Human Rights Tribunal. His application did not even make it to first base.
Adjudicator Robert Blasina dismissed the complaint, ruling that an injury to his hand did not necessarily translate to a tenable complaint of discrimination. For one thing, Li could not show he was disabled within the meaning of the British Columbia Human Rights Code, which is necessary to claim its protection.
To qualify as a disability for purposes of the legislation, a medical condition must be involuntary, have a degree of severity and persistence and impede a person’s participation in economic and other areas of life. Common and transitory ailments such as a cold or flu do not create the physiological barrier the code is intended to overcome. Li’s symptoms of swelling were, by his own doctor’s medical evidence, too transitory to establish a physical disability. Thus Li had no grounds for supporting a claim of discrimination.
Significantly, the tribunal also determined Li had failed to show a nexus between his condition and the decision to dismiss him. All signs pointed to the fact Baird was incensed by Li’s accusations he had recruited indolent employees. This bore no relationship to the allegations of discrimination levelled by Li.
This case underscores the message that employers need not be afraid of taking some basic steps in assessing such cases: ❚ Scrutinize claims of sickness Seek detailed medical documentation on the degree of disability and the specific limitations and functionalities. Reject generic confirmation of illness from a doctor. In this decision, the medical evidence was crucial in showing Li was not disabled. ❚ Comply with accommodation requirements Aluma wisely declined to modify the light duties until it received information to the contrary. Requests to return to normal duties may be premature and increase the risk of re-injury or exacerbating existing symptoms. ❚ Curb abuse of sick leave Employees who are under investigation for wrongdoing often claim illness to put off the interviews. Do not be deterred by such flimsy claims and insist on their attendance. There are few disabilities that prevent employees from attending a meeting. ❚ Sickness is not an excuse for misconduct If employees misbehave, they should be disciplined. Common ailments and life’s daily challenges are no cause for bad behaviour. ❚ Defend human rights complaints The process costs employees nothing and is a licence to extort fearful employers. Avoid the temptation of settling frivolous cases. By not settling this claim, Aluma eloquently communicated to its workforce it will not capitulate to unjustified demands.
On another note, as a reward for those sufficiently intrepid to read this far, Brian Grosman and I are conducting a public seminar tomorrow at 8:30 a.m. on “The top 10 mistakes employers make and how to solve them,” moderated by Paul Godfrey, president and chief executive of Postmedia. If interested, please enrol at levittgrosman.com